2009 (8) TMI 410

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....sue involved in this case is regarding whether the respondents are entitled to abatement (75 per cent of the value) in terms of the Notification No. 32/2004-ST, dated 3-12-2004. The respondents are discharging the Service Tax as the recipients of transporting agency services. The respondents have discharged the Service Tax liability on the 25 per cent of the value of the services as per the Notification No. 32/2004. Adjudicating authority felt that the applicant cannot avail the benefit of the said notification, on the ground that they have not produced any certificate or declaration by transportation agency nor there were any consignment note/SLR were issued. Adjudicating authority held against the respondent and confirmed the demand and s....

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....lants have taken registration and paid service tax when department had pointed their lapse. They pleaded ignorance of service tax provisions and were under the impression that they are not liable to service tax. In such a situation it cannot be imagined how the Appellant can insist the Transport Agency for certification on the consignment note when they are not at all paying Service Tax. Thus the appellant had no option but to get the certification afterwards. Upon perusing the relevant notifications and Board's circulars I find that the intention of the Government is not to give double benefit of Cenvat Credit and abatement, hence the condition in the notification that transport agency should not avail Cenvat Credit to be eligible for abat....

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....rious Tribunals. I observed that in some case laws, similar issues have been decided in favour of the assessees by various Tribunals, by granting stay and in some case laws dealt with similar issues have been decided by the Tribunals allowing the abatement even though the conditions, stipulated in Notification No. 32/2004-ST fulfilled belatedly by producing such type of declarations obtained from the transporters, which are as follows : (1) CCE v. Hy-Gro Chemicals Pharmtek (P.) Ltd. [2009] 20 STT 388 (Bang. - CESTAT). (2) CCE v. Advance Diesel Engg. (P.) Ltd. [2008] 16 STT 156 (Trib. - Ahd.). (3) Selvakumar Spinners (P.) Ltd. v. CCE, Salem 2008 (10) STR (Trib. - Chennai). (4) CCE v. Sunhili Ceramicks Pvt. Ltd. 2008 (9) STR 53 (T....